Opinion
24A-CR-867
09-12-2024
Phillip Justin McConnell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Glen E. Koch II Boren, Oliver, & Coffey, LLP Martinsville, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Morgan Superior Court The Honorable Brian H. Williams, Judge Trial Court Cause No. 55D02-2207-F4-863
Attorney for Appellant Glen E. Koch II Boren, Oliver, & Coffey, LLP Martinsville, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BAILEY, JUDGE
Case Summary
[¶1] Phillip Justin McConnell appeals his convictions for two counts of Child Molesting, as Level 4 felonies. He presents the issue of whether irregularity in jury selection, specifically, the trial court's selection of an alternate juror from the impaneled jury after the close of the State's evidence, by rolling a die, entitles him to a new trial. We affirm.
Facts and Procedural History
[¶2] On January 22, 2024, McConnell was brought to trial on two counts of Child Molesting. Before voir dire commenced, the trial court advised the parties as follows: "I don't really do alternate jurors. We're going to pick thirteen and designate the alternate randomly at the conclusion of the evidence, so, that way everyone think[s] they're actually paying attention for a reason during the course of the trial." (Tr. Vol. II, pg. 29.) Defense counsel objected that he "would rather know the alternate," and asserted that the defense should be allowed a peremptory strike of a proposed alternate. (Id. at 30.) The defense characterized the trial court's procedure as falling "outside of the jury rules." (Id.) The jury selection process commenced, with the trial court advising the venirepersons that thirteen would be selected and an alternate would be chosen "at the end before deliberations." (Id. at 46.) According to the trial court, this provided to all members of the jury a "motive to pay attention to the evidence." (Id.)
[¶3] The parties, each having ten juror challenges to use, questioned prospective jurors in three venire panels. By the end of the voir dire of the third panel, sixteen prospective jurors had been stricken. The attorneys approached the bench to address the matter of the remaining strikes and defense counsel stated: "I'm using my last two strikes on number 40 and 46. If I'd had additional strikes, I would have struck 47, 50, 51." (Id. at 168.) The State struck potential juror 38, leaving thirteen venirepersons to serve on the jury. The trial court afforded McConnell the opportunity to preserve any objection to the procedure, and defense counsel contended that he "would have" removed potential jurors 43, 41, 48, and 50. (Id. at 171.) He argued that he was "denied the ability to use an alternative strike as to somebody who was the alternate juror," and that "by seating them and then randomly picking the alternate, we've gone beyond [Jury Rules] 16 and 18." (Id. at 172.)
Counsel also acknowledged that he would not have had sufficient peremptory strikes to remove those four potential jurors.
[¶4] After the presentation of the State's evidence, the trial court rolled a sixteensided die to select which of the impaneled jurors was to serve as the alternate juror. Defense counsel declined to personally roll the die, instead objecting to the process. Based on the roll of the die - which landed on a seven - the seventh juror selected, Juror No. 17, was made the alternate juror. The defense presented its case, and the jury was instructed. Among the instructions to the jury was the identification of Juror No. 17 as the alternate and an admonishment that Juror No. 17 could not engage in the deliberations or vote upon the verdicts.
[¶5] The jury found McConnell guilty as charged. He received an aggregate sentence of six and one-half years imprisonment. McConnell now appeals.
Discussion and Decision
[¶6] McConnell asks that he be granted a new trial due to error in the jury selection process. More specifically, McConnell contends that the trial court should have impaneled twelve regular jurors as opposed to thirteen, should have afforded him an additional strike specific to an alternate juror, and should not have used a die to determine who was to serve as the alternate juror.
[¶7] "Trial courts must adhere to our Trial Rules, ... which we interpret de novo[.]" Doroszko v. State, 201 N.E.3d 1151, 1154-55 (Ind. 2023) (internal citation omitted). However, "[n]o error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties." Ind. Appellate Rule 66(A).
[¶8] Indiana Jury Rule 16 provides that, when the defendant is charged with a Level 4 felony, "the jury shall consist of twelve (12) persons, unless the parties and the court agree to a lesser number of jurors." Additionally, "[t]he court shall determine the number of alternate jurors to be seated." Id. Indiana Trial Rule 47(B) explains the process to select alternate jurors: "Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the regular jurors." By impaneling thirteen jurors, as opposed to impaneling twelve jurors and separately selecting an alternate juror, the trial court departed from the framework of Jury Rule 16.
[¶9] Under the methodology used by the trial court, McConnell was not afforded an additional challenge against a potential alternate juror. The State contends that McConnell was not entitled to an additional challenge, citing Jury Rule 18(c), which provides:
In selection of alternate jurors in both civil and criminal cases:
(1) one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated;
(2) the additional peremptory challenges under this subsection may be used only in selecting alternate jurors; and
(3) peremptory challenges authorized for selection of jurors may not be used in selecting alternate jurors.
In this case, only one alternate juror was seated. Accordingly, McConnell was not entitled to a peremptory challenge to an alternate juror.
[¶10] Finally, we consider the casting of a die to determine which juror would serve as the alternate juror. McConnell contends that this procedure mimics gambling, albeit unregulated gambling, and thus is contrary to public policy. Our Indiana Supreme Court addressed a similar situation in which the trial court selected two alternate jurors "by drawing lots." Lowery v. State, 640 N.E.2d 1031, 1039-40 (Ind. 1994). In addressing whether this prejudiced the defendant, the Court said that the "essential core value[s]" of the jury selection process are impartiality and the qualifications of the jurors. Id. at 1040. Therefore, "[i]n the absence of purposeful, nonrandom exclusion of prospective jurors, and with no showing of harm to the defendant, any technical noncompliance with the statutory requirements for jury selection does not amount to reversible error." Id. (quoting Williams v. State, 555 N.E.2d 133, 138 (Ind. 1990)). The Court found that there was no reason to believe that the selection of the alternate jurors by drawing lots threatened those core values, so the departure from the normal procedure for selecting alternate jurors "carried no prejudice or harm." Id.
[¶11] Here, in selecting the alternate juror by rolling a die, the trial court did not follow the proper procedure for selecting the alternate juror. See Ind. Trial Rule 47(B) (prescribing the same procedure as for regular jurors). But McConnell does not show, or even allege, that the trial court's method of choosing the alternate juror was a "purposeful and nonrandom exclusion" of other potential alternate jurors and that the selection process threatened the "core values" of jury qualifications and impartiality. See Lowery, 640 N.E.2d at 1040. As was the case in Lowery, the trial court's method of selecting the alternate juror "carried no prejudice or harm." Id.
Conclusion
[¶12] The trial court employed some procedures that departed from the applicable trial and jury procedure rules, and we disapprove of such measures. However, McConnell has not shown that any such deviation affected his substantial rights. Therefore, under Appellate Rule 66(A), McConnell has not shown reversible error.
[¶13] Affirmed.